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STATE OF MINNESOTA IN COURT OF APPEALS A09-1987 State of Minnesota, Respondent, vs. Frank Irving Wiggins, Appellant. Filed September 14, 2010 Affirmed Ross, Judge Ramsey County District Court File No. 62-CR-08-16127 Lori Swanson, Attorney General, St. Paul, Minnesota; and Susan Gaertner, Ramsey County Attorney, Mitchell L. Rothman, Assistant County Attorney, St. Paul, Minnesota (for respondent) David W. Merchant, Chief Appellate Public Defender, Michael F. Cromett, Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Wright, Judge. SYLLABUS A police officer's pulling up a person's excessively saggy pants during a constitutionally justified investigative stop is not a search requiring additional justification.

OPINION ROSS, Judge This case requires us to determine the constitutionality of a novel police procedure which, as far as we can tell, has never been reviewed on appeal by this court or any other. An officer investigating a suspected drug deal directed appellant Frank Wiggins from a car, ordered him to raise his hands high overhead, and then discovered a handgun in his pocket when she hoisted up his sagging pants that had dropped to hang around his knees. Wiggins appeals from his conviction of possession of a firearm by an ineligible person. We must decide whether the unique wardrobe assist was a search subject to constitutional regulation and, if not, whether it was the kind of seizure-related contact otherwise prohibited by the Fourth Amendment. Because we hold that the officer's tactic was neither a search nor an unreasonable touching during a lawful investigative detention, we affirm. FACTS St. Paul police officer Kara Breci and her partner were on patrol on a November 2008 afternoon in a high drug-activity area when they noticed a car parked with its engine idling in a White Castle parking lot. Officer Breci had seen many drug deals, and several things in addition to the location aroused her suspicion that she was witnessing another one. The driver and a man later identified as appellant Frank Wiggins sat in the front seat, and a third man approached and entered the back seat without any food from the restaurant. No one in the car appeared to be eating. The back-seat occupant began to look down at his lap. As the officers walked to the car they saw the rear occupant drop a 2

plastic bag to the floor. They asked the man what the bag contained, and he replied, "Some weed." Wiggins seemed nervous to Officer Breci while her partner was

questioning the rear occupant. The officers ordered the men out of the car. Officer Breci directed Wiggins to raise his hands above his head. Wiggins wore loose-fitting jeans, which, when he stood, were hanging down around his knees. Officer Breci decided to pat-frisk Wiggins for weapons. But first, she pulled his pants up. As she lifted Wiggins's pants, she felt a hard object in his front pocket. She asked Wiggins what it was, and he responded that he did not know. The officer surmised that it was a handgun and removed a .380 caliber pistol from Wiggins's pocket. Because Wiggins had prior violent-crime convictions, the state charged him with possession of a firearm by an ineligible person. Wiggins moved the district court to suppress the gun evidence, arguing that the seizure of the car and its occupants was unsupported by reasonable suspicion and that the officer conducted an unconstitutional frisk when she hoisted his pants. The district court denied Wiggins's motion to suppress, reasoning that the officers lawfully approached the car and ordered the occupants out based on their seeing the marijuana, that Officer Breci reasonably chose not to direct Wiggins to reach for his own pants out of concerns for her own safety, and that Officer Breci did not search Wiggins but instead found the gun by accident as she was "help[ing] him get his pants into a decent position." Wiggins waived his right to a jury trial and submitted the case to the district court on stipulated facts, preserving for appeal his challenge to the stop and alleged search. See 3

State v. Lothenbach, 296 N.W.2d 854, 857

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